Thread by @stevenmazie

It's now been longer than a 6-month wait for Fulton v. Philadelphia, the SCOTUS case pitting religious liberty against LGBT equality that was argued on Election Day (11/4/2020).

A 🧵 on what even a narrow loss for LGBT anti-discrimination rules might mean.

(a lot)

Everybody thinks the Catholic foster agency, which refuses to vet same-sex couples as foster families, is going to win its 1st-am battle to keep contracting with Philly despite the city's rule barring discrimination on the basis of sexual orientation.

I think that, too.

The main question is how SCOTUS will do that: by finding that Catholic Social Services wins under existing precedent or by jettisoning the precedent under which it does (seem to) lose: Employment Division v. Smith, a landmark 1990 free-exercise ruling from Justice Scalia

Another q is about consequences. Even some liberal justices, notably Breyer, emphasized that little harm (leaving aside stigma) seems to accrue to gay couples, as none have approached CSS, and CSS says it would refer them to gay-friendly foster agencies if they did.

Kavanagh emphasized this in his questioning of CSS's lawyer...

(As Coach K might say: no harm, no foul.)

...and CSS's lawyer milked the idea, too

BUT HERE IS THE THING.
Remember the contraceptive mandate in the ACA, and Catholic groups like Little Sisters of the Poor who objected to even an ACCOMMODATION that got them out of providing health care to their employees just by SIGNING A FORM so the govt can handle it?

That was the Obama administration's offer, and Little Sisters & other Catholic orgs rejected it. Signing a form is just as hateful to their religious beliefs against birth control as providing the coverage themselves, they said. Here's a graf from a related ruling last year:

In other words, even when Little Sisters & other Catholic orgs get a carve-out from a law designed to benefit all & (effectively) refer women seeking contraceptives somewhere else, they are implicated in the sin. Their hands are dirty. They need an exemption from the exemption.

That's a proposition a short-handed SCOTUS acknowledged as reasonable in its compromise Zubik decision in 2016 and that obliquely informs the Little Sisters of the Poor ruling in 2020 from which Justices Ginsburg & Sotomayor vigrously dissented

WHICH MEANS: if CSS wins in Fulton & comes back to SCOTUS and says "we object to referring gay couples to other agencies b/c that indirectly involves us in making families out of people who (our doctrine says) shouldn't be married", they'd have 5-6 justices open to that claim.

UPSHOT: even a narrow win for CSS that doesn't dislodge Smith (though Smith seems to have been silently overruled in SCOTUS's COVID orders) could open yet another door to bolstered religious exemption claims that militate against the rights & interests of third parties.

END 🧵